Preproposal statement of inquiry was filed as WSR 00-21-047.
Title of Rule: Floodplain management regulations, chapter 173-158 WAC.
Purpose: Current statutes do not allow the reconstruction of farmhouses or other residential structures if they are substantially damaged and are located within the regulatory floodway. As directed by the legislature through ESHB 1963 and ESHB 2934, ecology is amending the floodplain management regulations, chapter 173-158 WAC, to provide a process through which a waiver to the reconstruction prohibition can be provided as a recommendation to the local permitting authority.
Other Identifying Information: Under certain circumstances, described in the proposed rule change, reconstruction or replacement of substantially damaged farmhouses and other residential structures may be allowed, even when they are located in the regulatory floodway.
Statutory Authority for Adoption: Chapter 86.16 RCW.
Statute Being Implemented: Chapter 86.16 RCW.
Summary: This rule change allows for the replacement of substantially damaged structures in the regulatory floodway under specific circumstances.
Reasons Supporting Proposal: This action is required pursuant to ESHB 1963 and ESHB 2934.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Tim D'Acci, Headquarters, 407-6796.
Name of Proponent: Department of Ecology.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The department agrees with these negotiated rule changes.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: Under the current regulations contained in the chapter 173-158 WAC, no reconstruction or replacement of a substantially damaged residential structure located in the floodway is allowed. This rule amendment would allow, under specific circumstances, the replacement residential structure located in the floodway is allowed. This rule amendment would allow, under specific circumstances, the replacement of either a farmhouse residence or an "other residential structure" in the floodway, provided the state and federal rules addressing such construction are met. This replacement or reconstruction would only be allowed when no other alternative is available, and the floodway characteristics are such that they present a minimal threat to safety.
Proposal Changes the Following Existing Rules: These changes are required by ESHB 1963 and ESHB 2934. See Explanation of Rule above.
No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.025 provides that a small business economic impact statement is not required for adoption of a rule described in RCW 34.05.310(4). RCW 34.05.310 (4)(b) applies to this case in that the proposed rule relates only to the Department of Ecology and local governments. RCW 34.05.310 (4)(e) also applies in that the proposed amendments to chapter 173-158 WAC are explicitly dictated by statute. See RCW 86.16.041 (3) through (5) for provisions relating to repair or replacement of farmhouses and other residential structures in floodways and for the development of assessment procedures and criteria required to implement subsections (3) and (4).
RCW 34.05.328 does not apply to this rule adoption. This proposal is exempted from the requirements of RCW 34.05.328 by subsections (5)(b)(ii) and (v). These subsections provide for exemptions for rules relating to internal government operations and for rules explicitly dictated by statute. See paragraph above.
Hearing Location: Walter Hall, 1226 West Casino Road, Everett, WA, on April 17, 2002, at 6:30 p.m.; and at the Yakima Valley Doubletree Hotel, 1507 North 1st Street, Yakima, WA, on April 18, 2002, at 6:30 p.m.
Assistance for Persons with Disabilities: Contact Mary Lynum by April 12, 2002, (360) 407-6908.
Submit Written Comments to: Scott McKinney, SEA Program, P.O. Box 47600, Olympia, WA 98504-7600, or e-mail email@example.com, fax (360) 407-6902, phone (360) 407-7297. Comments must be postmarked before April 25, 2002.
Date of Intended Adoption: June 28, 2002.
February 26, 2002
AMENDATORY SECTION(Amending WSR 90-21-089, filed 10/19/90, effective 11/19/90)
WAC 173-158-030 Definitions. For the purposes of this chapter the following definitions shall apply:
(1))) "Base flood" means the flood having a one percent
chance of being equalled or exceeded in any given year. Also
referred to as the "one hundred year flood."
(2))) "Best available information" means in the absence of
official flood insurance rate map data, communities can use data
from other federal, state, or other sources provided this data
has either been generated using technically defensible methods or
is based on reasonable historical analysis and experience.
(3))) "Designated floodway" means the regulatory floodway
which has been delineated on the flood insurance rate map (FIRM)
or the flood boundary/floodway map (FBFM) of a community's flood
insurance study and is included in the community's flood damage
(4))) "Development" means any man-made change to improved
or unimproved real estate, including, but not limited to,
buildings or other structures, mining, dredging, filling,
grading, paving, extraction or drilling operations or storage of
equipment or materials.
"Dwelling" means one or more rooms designed for occupancy by a person or family for living and sleeping purposes, containing kitchen facilities and rooms with internal accessibility, for use solely by the dwelling's occupants.
"Encroachment" means any alteration or development within the regulatory floodway that would result in any increase in flood levels during the occurrence of the base flood discharge.
"Farmhouse" means a single family dwelling located on a farm site where resulting agricultural products are not produced for the primary consumption or use by the occupants and the farm owner.
"Flood or flooding" means a general and temporary condition of partial or complete inundation of normally dry land areas from:
(a))) • The overflow of inland or tidal waters; and/or
(b))) • The unusual and rapid accumulation of runoff of
surface waters from any source.
(5))) "Flood insurance rate map (FIRM)" means the official
map on which the federal insurance administration has delineated
both the areas of special flood hazard and the risk premium zones
applicable to the community.
(6))) "Floodway" means the channel of a river or other
watercourse and the adjacent land areas that must be reserved in
order to discharge the base flood without cumulatively increasing
the water surface elevation more than one foot.
(7))) "New construction" means structures for which the
"start of construction" commenced on or after the effective date
of the local ordinance.
(8))) "Person" means an individual, partnership,
corporation, association, organization, cooperative, public or
municipal corporation, or any agency of the state or local
governmental unit however designated.
(9))) "Replacement residential structure" means a
residential structure built as a substitute for a previously
existing residential structure of equivalent use and size.
"Residential structure" means a place in which one lives: Dwelling.
"Special flood hazard area" means an area subject to a base or one hundred year flood; areas of special flood hazard are shown on a flood hazard boundary map or flood insurance rate map as Zone A, AO, A1-30, AE, A99, AH, VO, V1-30, VE, or V.
(10))) "Structure" means a walled and roofed building,
including a gas or liquid storage tank that is principally above
ground. Manufactured homes are considered structures.
(11))) "Start of construction" includes substantial
improvement, and means the date the building permit was issued,
provided the actual start of construction, repair,
reconstruction, placement, or other improvement was within one
hundred eighty days of the permit date. The actual start means
either the first placement of permanent construction of a
structure on a site, such as the pouring of slab or footings, the
installation of piles, the construction of columns, or any work
beyond the stage of excavation; or the placement of a
manufactured home on a foundation. Permanent construction does
not include land preparation, such as clearing, grading, or
filling; nor does it include the installation of streets and/or
walkways; nor does it include excavation for a basement,
footings, piers, or foundation or the erection of temporary
forms; nor does it include the installation on the property of
accessory buildings, such as garages or sheds not occupied as
dwelling units or not part of the main structure.
(12) "Substantial improvement" means any repair,
reconstruction, or improvement of a structure, the cost of which
equals or exceeds fifty percent of the market value of the
(a) Before the improvement or repair is started; or
(b) If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.
The term does not, however, include either:
(i) Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or
(ii) Any alteration of a structure listed on the National Register of Historic Places or a state inventory of historic places.
(13))) "Substantial damage" means damage of any origin sustained by a structure where the cost of restoring the structure to its before damage condition would equal or exceed fifty percent of the market value of the structure before the damage occurred.
"Substantial improvement" means any repair, reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds fifty percent of the market value of the structure before the "start of construction" of the improvement. This term includes structures that have incurred "substantial damage," regardless of the actual repair work performed. The term does not, however, include either:
• Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement or building official and are the minimum necessary to assure safe living conditions; or
• Any alteration of a historic structure, provided that the alteration will not preclude the structure's continued designation as a historic structure.
"Variance" means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter.
(14))) "Wetlands" means lands transitional between
terrestrial and aquatic systems where the water table is usually
at or near the surface or the land is covered by shallow water. Wetlands have one or more of the following three attributes:
(( (a))) At least periodically, the land supports predominantly
hydrophytes; (( (b))) the substrate is predominantly undrained
hydric soil; and (( (c))) the substrate is nonsoils and is
saturated with water or covered by shallow water at some time
during the growing season of each year.
[Statutory Authority: RCW 86.16.061. 90-21-089, § 173-158-030, filed 10/19/90, effective 11/19/90; 89-07-022 and 90-06-059 (Order 88-57 and 88-57A), § 173-158-030, filed 3/7/89 and 3/6/90, effective 4/6/90. Statutory Authority: Chapter 86.16 RCW. 88-10-058 (Order 88-6), § 173-158-030, filed 5/4/88.]
(1) Special flood hazard areas with designated floodways. In addition to those NFIP requirements for designated floodways,
communities with designated floodways shall restrict land uses
within such areas to include the prohibition of construction or
reconstruction of residential structures except for: (a)
Repairs, reconstruction, or improvements to a structure which do
not increase the ground floor area; and (b) repairs,
reconstruction, or improvements to a structure the cost of which
does not exceed fifty percent of the market value of the
structure either (i) before the repair, reconstruction, or
improvement is started, or (ii) if the structure has been
damaged, and is being restored, before the damage occurred. Work
done on structures to comply with existing health, sanitary, or
safety codes ((
or to structures identified as historic places))
which have been identified by the local code enforcement or
building official and are the minimum necessary to assure safe
living conditions shall not be included in the fifty percent
determination in (b) of this subsection. A residential dwelling
located partially within a designated floodway will be considered
as totally within a designated floodway and must comply with this
chapter. However, the floodway prohibition in this subsection
does not apply to existing farmhouses in designated floodways
that meet the provisions of WAC 173-158-075, or to residential
dwellings other than farmhouses that meet the depth and velocity
and erosion analysis provisions of WAC 173-158-076, or to
structures identified as historical places.
(2) Special flood hazard areas without designated floodways. When a regulatory floodway for a stream has not been designated, the community may require that applicants for new construction and substantial improvements reasonably utilize the best available information from a federal, state, or other source to consider the cumulative effect of existing, proposed, and anticipated future development and determine that the increase in the water surface elevation of the base flood will not be more than one foot at any point in the community. Building and development near streams without a designated floodway shall comply with the requirements of 44 CFR 60.3 (b)(3) and (4), and (c)(10) of the NFIP regulations.
[Statutory Authority: RCW 86.16.061. 90-21-089, § 173-158-070, filed 10/19/90, effective 11/19/90. Statutory Authority: Chapter 86.16 RCW. 88-10-058 (Order 88-6), § 173-158-070, filed 5/4/88.]
(1) The new farmhouse is a replacement for an existing farmhouse on the same farm site;
(2) There is no potential safe building site for a replacement farmhouse on the same farm site outside the designated floodway;
(3) Repairs, reconstruction, or improvements to a farmhouse shall not increase the total square footage of encroachment of the existing farmhouse;
(4) A replacement farmhouse shall not exceed the total square footage of encroachment of the structure it is replacing;
(5) A farmhouse being replaced shall be removed, in its entirety, including foundation, from the floodway within ninety days after occupancy of a new farmhouse;
(6) For substantial improvements, and replacement farmhouses, the elevation of the lowest floor of the improvement and farmhouse respectively, including basement, is a minimum one foot higher than the base flood elevation;
(7) New and replacement water supply systems are designed to eliminate or minimize infiltration of flood waters into the system;
(8) New and replacement sanitary sewerage systems are designed and located to eliminate or minimize infiltration of flood water into the system and discharge from the system into the flood waters; and
(9) All other utilities and connections to public utilities are designed, constructed, and located to eliminate or minimize flood damage.
(1) Recommendation to repair or replace a substantially damaged residential structure located in the regulatory floodway shall be based on the flood characteristics at the site. In areas of the floodway that are subject to shallow and low velocity flooding, low flood-related erosion potential, and adequate flood warning time to ensure evacuation, the department may recommend the replacement or repair of the damaged structure. Any substantially damaged residential structure located in the regulatory floodway in a high risk zone based on the flood characteristics will not be recommended to be repaired or replaced. Flood warning times must be twelve hours or greater, except if the local government demonstrates that it has a flood warning system and/or emergency plan in operation. For purposes of this paragraph flood characteristics must include:
(a) Flood depths can not exceed more than three feet; flood velocities cannot exceed more than three feet per second.
(b) No evidence of flood-related erosion. Flood erosion will be determined by location of the project site in relationship to channel migration boundaries adopted by the local government. Absent channel migration boundaries, flood erosion will be determined by evidence of existing overflow channels and bank erosion.
At the request of local government, the department will prepare a report of findings and recommendations for local government concurrence on repair or replacement of substantially damaged residential structures located in the regulatory floodway.
Without a recommendation from the department for the repair or replacement of a substantially damaged residential structure located in the regulatory floodway, no repair or replacement is allowed per WAC 173-158-070(1).
(2) Before the repair, replacement, or reconstruction is started, all requirements of the National Flood Insurance Program, the state requirements adopted pursuant to RCW 86.16.031(8), and all applicable local regulations must be satisfied. In addition the following conditions must be met:
(a) There is no potential safe building location for the replacement residential structure on the same property outside the regulatory floodway.
(b) A replacement residential structure is a residential structure built as a substitute for a previously existing residential structure of equivalent use and size.
(c) Repairs or reconstruction or replacement of a residential structure shall not increase the total square footage of floodway encroachment.
(d) The elevation of the lowest floor of the substantially damaged or replacement residential structure is a minimum of one foot higher than the base flood elevation.
(e) New and replacement water supply systems are designed to eliminate or minimize infiltration of flood water into the system.
(f) New and replacement sanitary sewerage systems are designed and located to eliminate or minimize infiltration of flood water into the system and discharge from the system into the flood waters.
(g) All other utilities and connections to public utilities are designed, constructed, and located to eliminate or minimize flood damage.